A: According to the Texas Family Code, Section 2.401, three elements must be present to form a common law marriage in Texas.

First, you must have "agreed to be married."

Second, you must have "held yourselves out" as husband and wife. You must have represented to others that you were married to each other. As an example of this, you may have repeatedly introduced your partner socially as "my husband" or "my wife," as the case may be. Another example might be that you may have signed and filed a federal income tax return using the filing status of "Married, filing jointly" or "Married, filing separately."

There are lots of other government documents and health insurance documents that ask whether you are married or single and ask for the name of your spouse if you are married. If you list someone (or if someone lists you) as a spouse on such a form, that is some evidence that a common law marriage exists. Many employers will offer to provide health insurance to spouses of their employees and if you signed up a person of the opposite sex (or of the same sex) that you are living with as a "spouse," then that is some evidence of a common law marriage.

Note: Due to the high cost of providing health insurance to spouses and dependents, many employers are now requiring you to file an affidavit known as a Declaration and Registration of Marriage with the County Clerk (if you do not have a formal executed marriage license that you can provide to your employer) before they will allow you to sign up a spouse for employer-provided health insurance in Texas. If you execute this affidavit and it gets filed with a county clerk in Texas, that is conclusive proof in Texas that you are in fact married. Once that document gets executed and filed with the county clerk, it has the same effect as an executed marriage license in Texas.

Third, you must have lived together in the State of Texas as husband and wife.

Note: Texas law does not allow you to enter into a common law marriage unless the man and the woman (or two men or two women) are both at least 18 years old.

Note: Now that same sex marriage is now legal in Texas and in all 50 states, it is certain that two men or two women can be legally considered to be common law married in the state of Texas if they meet the criteria as outlined above for common law marriage in Texas. Before same sex marriage was legal in Texas, it was not possible for two men or two women to be common law married in Texas. No one wants to become married out of ignorance of the law so everyone needs to be mindful of what it takes to become common law married in Texas.

The facts of each case are different and many times whether or not you are deemed to be in a common law marriage relationship is a judgment call. You can always file a divorce petition and see what happens. If the parties do not agree on whether or not a valid marriage exists in Texas, then it will be up to a judge to decide whether or not a common law marriage exists before ruling on other issues in the case.

Q: My common law husband and I have been living in Texas and now want to validate our common law marriage so that it is legally recognized. How do we do that?

A: You can complete and record a form prescribed by the Bureau of Vital Statistics. The form is available at your county clerk's office. The Declaration and Registration of Informal Marriage form asks for full names of the man and the woman, woman's maiden surname, addresses, dates of birth, places of birth, social security numbers, and relationship information. Call your county clerk if you want a copy of this form or if you need assistance in completing and filing this form.

The Declaration form states: "I solemnly swear (or affirm) that we, the undersigned, are married to each other by virtue of the following facts: On or about (Date) we agreed to be married, and after that date we lived together as husband and wife and in this state we represented to others that we were married. Since the date of marriage to the other party I have not been married to any other person. This declaration is true and the information in it which I have given is correct."

Q:If I end up going to court to prove up a common law marriage, what will I need to show?

A: You will need to prove up the three elements of the common law marriage doctrine as outlined in the first question and answer on this page. In order to do this, you must show evidence on each point. Your own testimony can be evidence of the existence of a common law marriage: for example, you can testify that your partner introduced you in social situations as his wife, or that you introduced him as your husband. Other people who know you can also testify to the same effect. In addition, you can ask the court to consider documents which reflect that you and your partner held yourselves out to the world as being married. Typical documents presented in these types of cases include house or apartment leases signed as husband and wife, federal income tax return(s) for one or more years using the filing status of "Married, filing jointly" or "Married, filing separately," and health insurance and/or life insurance policies listing one person as the other person's spouse.

Q: Are common law marriages recognized in other states?

A: Not all states have laws like those in Texas which allow persons to marry legally without going through a formal marriage licensing procedure and a formal marriage ceremony. If you are considering moving to another state, or if you think you may have entered into a common law marriage in another state because of your actions in that state, you should seek legal advice from an experienced family law attorney in that state. (If you have a common law marriage in Texas and you want to move to another state and make sure your Texas common law marriage will be recognized in the new state, you should execute a Declaration of Informal Marriage or just get married in Texas by a Texas justice of the peace so that you will eliminate any doubt that you are married.)

Q: I have heard that if we live together for a certain period of time, we are automatically in a common law marriage whether or not we tell anyone we are married. Is that true?

A: Not in Texas. You must satisfy the three-part test described in the first question and answer on this page to be in a common law marriage in Texas, no matter how long you have been living together.

Q: If we have children together, are we automatically in a common law marriage?

A: No. You must satisfy the three-part test described in the first question and answer on this page to be in a common law marriage, even if you have had one or more children together. (Of course, each parent has legal responsibilities toward any children regardless of whether or not the parents were married to each other when the children were conceived or born.)

Q: He has introduced me as his wife, although I have not introduced him as my husband. We have not taken any other actions that would hold us out to the world as being married. Are we in a common law marriage?

A: It depends on whether you tried to correct the impression that you were married. If you did, you may have some argument that you had not agreed to be married. But if you knew that you were regularly being introduced in this fashion and regularly did nothing at the time to correct the impression that you were married, you may well be in a common law marriage. I have known people who regularly immediately correct someone who assumes that they are married to the person that they are living with. They do this because they want to avoid any possibility of holding themselves out to the world as husband and wife in a common law marriage.

Q: Do we have to hold ourselves out to the world consistently as husband and wife in order to be in a common law marriage?

A: No. Even one instance of publicly declaring yourself married COULD be sufficient to place you in such a marriage.

Q: Does being in a common law marriage have the same legal effect as being in a marriage where you had a marriage license and a formal ceremony -- for example, with regard to community property and child custody?

A: Once the common law marriage is legally established and determined to exist in Texas, yes.

Q: Can I get a protective order against an abusive common law spouse?

A: Yes, if you are in or have been in a household with a violent person and there are recent incidents of violence or serious threats of violence. Being in a common law marriage does not prohibit you from requesting a protective order. Contact the county attorney's office to see if they can help you obtain a protective order.

Q: How can I get out of a common law marriage?

A: Common law marriage may end in two ways. If there have been children or if property and debts remain undivided, you will want to seek a formal divorce. In a formal divorce process, paternity, child custody, child support, and child visitation can be determined, and debts and community property can be divided.

Under a new provision of the Family Code, either partner in a common law marriage has two years after you split up to file a petition in a family court to prove that the common law marriage did exist. In order to fit into this provision, you must have separated after September 1, 1989.

Both partners in a common law marriage are responsible for community debts and for care and support of the children of the marriage. It is therefore urgent that you discuss the termination of a common law marriage with an attorney. You have a choice of methods, but they all require you to act within a certain length of time. However, even if the time has expired for you to obtain a divorce, other steps can still be taken to get court orders for regular payment of child support and regular visitation for the children of the common law marriage.

If you live in central Texas and you have questions about a common law marriage situation or other family law questions, please call me at 512-869-0131 to discuss your particular situation. I would be glad to talk to you on the phone or in my office about your specific situation.